Williams challenges Whirlpool Jet Boat Tours' benefit to Lewiston

by jmaloni

Sat, Aug 21st 2010 12:00 pm

by Joshua Maloni

Lewiston
resident and TAM Ceramics owner Jerry Williams lambasted Whirlpool Jet Boat
Tours at Monday's Village of Lewiston Board of Trustees meeting, questioning
the company's existence in the River Region and claiming its operators have not
fulfilled the obligations of their lease agreement.

"I don't
understand what benefit he brings," Williams said of WJBT President John
Kinney.

"I think
this board needs to terminate the lease," he added.

WJBT
operates off docks located on Water Street through a 40-year lease with the
Village of Lewiston. When the Village of Lewiston received this waterfront land
from the state of New York in 1994, Williams said the municipality was not
entitled to lease that property to a for-profit entity. He cited the 1972 Court
of Appeals of New York public trust case Lake George Steamboat Co. Inc., et al.
v. Robert M. Blais, et al., as trustees of the Village of Lake George.

In that
case, an Article 78 proceeding was initiated to bring about the discontinuance
of privately used village dock facilities. The Court of Appeals ruled the
village had no authority to make an agreement with a for-profit organization,
writing the "village received the lands for public use and could not lease dock
and related facilities to privately owned corporation which operated
sight-seeing boats."

Williams
also cited the New York Supreme Court, Appellate Division, Second Department,
ruling in the matter of James M. Kenney, et al. v. Board of Trustees of the
Incorporated Village of Garden City, et al. The court held that "public trust
for recreational uses was impressed upon property, precluding its lease to private
commercial entity."

In an e-mail
response, Kinney wrote, "WJBT owns commercial property in the Lewiston
waterfront. The property has been used commercially for over 100 years. WJBT
operations on the Niagara River and in the Lewiston waterfront are 100 percent
legal."

Moreover, in
a phone call to the Sentinel, Kinney said Williams' point here "is moot"
because "we own land there" (purchased from the Turgeon family in 2002).

Kinney said
WJBT, technically speaking, really doesn't need a lease agreement, as it
operates off its own property. In fact, he said, those riding a jet boat have
to cross over WJBT property to enter on to village land. But, "We don't want to
inhibit the public access," he said.

Newly appointed Village of Lewiston Attorney Edward Jesella
said he hadn't been privy to the Village of Lewiston's lease agreement with WJBT,
but would look into the matter.

Shoreline
Damage?

Williams
said the jet boats are creating a conflict with recreational boaters. Williams
is, himself, a recreational boater.

To this
charge, Kinney wrote, "During WJBT 2007 lease renewal with the Town of
Niagara-on-the-Lake, WJBT was mandated to fund a study relating to shoreline
erosion. The study was conducted by Urban & Environmental Management. UEM
is Niagara's leading firm relating to the Niagara River Gorge. The study
clearly and scientifically shows that the greatest forms of erosion on the
Niagara River and Lake Ontario are from the effects of the raising and lowering
cycles of the power plants and the impacts of wind-generated waves and ice
scour on the shorelines. The greatest areas of erosion were found along Lake
Ontario at Niagara Shores Park off Lake Shore Road and the Lake Ontario
shoreline east of Fort Niagara. The commonality of these two areas beside
having tremendous erosion is that jet boats do not operate in these areas of significant
erosion. The areas where jet boats do operate were found to have minimal or no
erosion. The results of this study were found to be consistent with studies
conducted by the New York State Power Authority."

Unpaid
Bills?

Next,
Williams said WJBT does not pay its lease agreement on time, or in full.
Village records obtained by the Sentinel indicate WJBT has no outstanding
balance. According to the village's records, WJBT is paid in full as of April
30.

The Village
of Lewiston entered into a contract with WJBT in 1996. That lease agreement was
revised and modified in 2002. Accordingly, WJBT is to pay a base rent of
$10,000 this year and next (plus 1.25 percent of jet boating sales, up to a
maximum of $25,000) and then $15,000 (plus 1.5 percent/up to $32,000) through
May 1, 2017. The maximum rent expands to $40,000 for years 2018-22. At that
point, WJBT can opt out of the lease agreement, or continue through May 1,
2042.

Kinney
responded by writing, "WJBT is currently working with the Village of Lewiston
to improve the waterfront in Lewiston for village residents, local boaters, and
the visiting public. Over the last 13 years WJBT has paid the Village of
Lewiston over $250,000 in lease payments for property which WJBT owns. WJBT has
also paid the property taxes on this property. In June, WJBT made a proposal to
the village to jointly improve the waterfront. The proposal maintains the
revenues enjoyed by the village in our current agreement in spite of the
property ownership matters.

"It has been
about 35 years since the Lewiston waterfront has had a ‘face-lift.' As the
president of WJBT and the owner of the Water Street Landing property, my
objective is to enhance Lewiston's waterfront and grow the business and
employment opportunities WJBT believes are available to the village."

Not
Giving Back?

Williams
also asserted WJBT is not a good neighbor in terms of contributing back to the
community.

"WJBT has
consistently sponsored Artpark, Peach, and Jazz festivals, and countless
fundraisers for medical and social causes," he wrote. "Our generosity has been
acknowledged by the Artpark board, the Village of Lewiston, the NTCC (Niagara
Tourism and Convention Corp.), and multitudes of private causes."

Not
Hiring Locals?

Williams
said, "This guy doesn't hire anybody (locally)," and suggested all of the WJBT
workers live in Canada and are boated over to Lewiston each working day.

Kinney said,
"Just like the Maid of the Mist, WJBT are Canadian registered vessels. Under
maritime law, the crews of vessels must be from the country of origin of the
vessel. That being said, WJBT and Water Street Landing (a restaurant WJBT owns)
employ about 50-60 staff from Lewiston and Western NY that support our boating
operations and restaurant facility."

Other
residents have intimated to the Sentinel that Kinney subverts customs and
immigration checkpoints.

That's not
true, Kinney wrote.

"As it
relates to border security, I don't think it would surprise anyone that U.S.
Customs and Border Protection take their job very seriously. Every member of
the WJBT is pre-screened by USCBP and must be interviewed at U.S. Immigration
prior to crossing the river by boat. Every time the boat crosses the river, the
crew on board must be reported to U.S. and Canadian Customs and Immigration.
Furthermore, WJBT assists U.S. Border Patrol and the U.S. Coast Guard in border
security matters. Recent examples of this include WJBT's identification of
fugitive Bucky Phillips' attempt to enter Canada by raft in the Niagara Gorge.
By alerting U.S. and Canadian authorities of Phillips inflating a raft on the
U.S. shoreline within the gorge, Phillips had to abort his attempt to cross
into Canada and elude U.S. authorities. Also, just two weeks ago, two persons
operating a motorized ‘zodiac' flipped their boat in the rapids, and were turned
over to the USCG, Niagara County Sheriff, U.S. Border Patrol and Lewiston
Police by WJBT."

Next
Steps

Lewiston
Mayor Terry Collesano said his board would re-assess the village's relationship
with WJBT.

"At this
time, we are in negotiations with (Whirlpool Jet Boat Tours)," he said.

Without
going into specific detail, Jesella said municipal decisions were made prior to
his appointment that "I would never have allowed.

"Now we have
to unravel what was done."

Kinney said
WJBT has hired an independent land surveyor to assess the property lines and
tax mapping related to his business. He said his company is in the news as a
result of the state's 20-year easement lease with the Village of Lewiston. That
agreement ended on July 18.

Regardless
of lease agreements, or lack thereof, Kinney said WJBT "would like to work
collaboratively with the village" to create a better Lewiston waterfront -- and
waterfront experience -- for both residents and tourists.